*1
pending
passage
regular
of a
ex-
successful
given by the Board of Bar Exam-
amination
during the Bar reinstatement to the Oklahoma
seeks Reinstatement
Association Petition for January Panel rec-
filed 2001. The Trial report
ommended in their
that reinstatement
petitioner's
granted, pending the
success-
convincing possesses evidence that he Allstate Insurance Defendant/Appellee. good character which enti- moral tles him to be admitted to the Okla- 95,206. No. Association; Bar homa Supreme Oklahoma. Testimony presented showing that 3. petitioner engaged has not in the Nov. practice unauthorized of law in the As Nov. Corrected during State of Oklahoma or California period resignation; of his As Nov. Modified competency 4. Petitioner lacks the Rehearing As Amended on Denial of learning required in the law for admis- Denied Dec. practice sion to law the State Oklahoma, absence due to his extended legal
from the field.
T2 IT THEREFORE ORDERED that IS granted, for Reinstatement be
the Petition
(82 Abel, Lynn Mares,
Ed Abel, Musser, B. Sokolosky, Mares, Burch, Kouri George, & City, Oklahoma, Oklahoma attorneys Ap- for pellees Bobby Gene Allen Allen, and Jane D. individually, parents and as and natural guardians Allen, minor, of Brett and as parents surviving next-of-kin of Damon Allen. Smith,
Curtis L. Marble, John Dexter Chubbuck Elder, Smith Rhodes Stewart & City, Oklahoma, Oklahoma attorneys Ap- for pellant Lynn Hickey Dodge, Inc. Durbin, II, Gerald E. Donchin, David B. Durbin, Bialick, Larimore & City, Oklahoma Oklahoma, attorneys Appellee Allstate Company. Insurance Middleton, Dobbs, granted accident. The trial court this motion Paul B. Schroeder & Middleton, Oklahoma, City, Oklahoma attor- and held as a matter of law that Hick- ey Dodge was the owner of this vehicle at the ney Chisholm, Peggy Administratrix of Margaret time of appeal, the accident. On the Estate of June Green. I, Appeals, Civil Division reversed and held
WINCHESTER, J. that title passed to the Buick to Ms. Green vehicle, delivery to-wit, of the when she 11 arising This matter concerns an action Lynn Hickey's drove it off car lot. from an automobile accident that occurred by when a Margaret vehicle driven June Upon review, 14 de novo partial we hold by plain- Green collidedwith a vehicle driven summary judgment on ownership the issue of 17, tiff/appellee Bobby Allen on June inappropriate. is Disputed issues of material passengers There were three in the Allen fact ambiguous exist due conflicting and vehicle, Jane, Brett and Damon Allen. The language agreement used in the sales and in record reflects that Damon Allen died from temporary agreement, the loan both of which injuries in incurred the accident and that 17, 1995, were executed on June an em- Jane, Bobby Brett apparently Allen were ployee Lynn Hickey Dodge of and Ms. injured. Margaret June Green a drove 1986 Green, Buick off the car lot defendant/ap- owned
pellant Lynn Hickey Dodge, and struck the REVIEW OF SUMMARY rear of the Allen vehicle while said vehicle PROCEEDINGS stopped light at a red located several Summary judgment 15 appropri is Lynn Hickey blocks from the dealership. appears ate where it The issue before the Court concerns owner- there is no substantial controversy any ship of the as to material 1986 Buick driven Ms. Green fact and one party judgment is entitled to as a matter of at the time of the accident. Daugherty Ass'n,
law. Coop. v. Farmers 72, ¶ 5, 947, 949; AND OK 689 P.2d FACTS PROCEDURAL Crockett HISTORY McKenzie, 3, ¶ 3, 463, v. 1994 OK 867 P.2d 17, 1995, 12 On June Saturday, a Ms. inquiry on concerning "[T]he the signed Green Temporary Sales Order and propriety entry summary Agreement given employee her an potential is limited to controversies concern Lynn Hickey Dodge, in return tendered ing any pleadings." issue raised the Wa the amount of one thousand five hundred ¶ Harris, 52, 9, baunsee v. 1980 OK 610 P.2d ($1,500.00) Lynn dollars Hickey Dodge 782, 785. Our must be made on the away and drove in a Buick. Ms. Green parties actually record that the presented signed a retail sales installment contract on potentially possi not on record that is 8, July the Appellees 1986 Buick on Inc., Wedgewood ble. v. Village, Weeks lawsuit, filed the alleging Lynn instant Hick- 72, ¶ 12, 780, OK 554 P.2d An order ey Dodge negligently entrusted the vehicle to grants summary disposes legal Ms. Appellees Green. also sued Hick- Therefore, appeal, issues. on the review we ey Dodge as Ms. principal. Green's The trial Nicholson, conduct is de movo. Brown v. granted summary judgment court in favor of ¶ 5 32, 1, 319, 1; 1997 OK n. 321 n. issues, Dodge on these and the Brown, 79, Manley ¶ 22, 30, 1999 OK n. I, Appeals, Court of Civil Division reversed P.2d 456 n. 30. "An court case, 95,173, and remanded the cause number plenary, independent claims for itself proceedings theory on the authority non-deferential to re-examine a tri sale of a vehicle. legal rulings." al Manley, court's Defendant/appellee Alistate Insurance 79, ¶ n. 989P.2d at n. 30. Company, underinsured motorist carrier for Allens, the partial filed a motion for sum- T6 The sole issue we address on cer- mary judgment July 9, on disputed which the tiorari is whether facts exist joined, asserting Lynn Hickey Dodge Allens determination of the of the 1986 owned the 1986 Buick at the time of the Buick Ms. Green drove at the time of the O.S.1991, parties cite 12A 2- customer;
accident. buyer identity or a service 4011 from Commercial Oklahoma's Uniform person who released the car and the date Code, arguments support of their that one release; readings; and time of odometer miles; allowed; actually chargeable at the miles rental or the other owned vehicle rates; condition; Lynn Hickey Dodge time of the accident. vehicle "rental will be 2-401(2), § argues passed that under title paid by" provision and the consideration Ms. at the time she drove the vehicle clause. The Green temporary agreement loan lists Lynn Hickey Dodge's subject off care lot and the vehicle to be the 1986 Buick dealership only security in the had interest Century, sticker number driven vehicle. Allstate contends that when Ms. Ms. Green at the time of the accident. signed temporary agreement, loan Green Lynn Hickey Dodge 18 The sales order 2401(1) parties "explicitly § under completed entirety. document It *4 agreed" Lynn Hickey Dodge would re thereto, page price reflects on one a sales of tain title to the vehicle and that title would fifty four thousand nine hundred dollars pass only to if Ms. Green and when she ($4,950.00), plus processing thirty- fee financing. secured ($38.50) eight fifty dollars and cents as well documents, togeth- Lynn Hickey Dodge's receipt T7 The two when read as of Ms. er, ambiguous conflicting contain and lan- Green's one thousand hundred five dollar ($1,500.00) payment. page down It lists on guage summary disposition precludes on ownership the issue of the 1986 Buick's at one a finance balance on the vehicle of three temporary eighty-eight the time of the accident. The thousand four hundred dollars ($3,488.50). agreement fifty loan states that "Vehicle is cents The sales order Lend- property. Agreement being er's This is a contract also lists the "vehicle sold" as the 1986 Century, for use of is Buick Vehicle while Vehicle on rental sticker number G6450764 temporary agree- to Borrower." See loan and contains the vehicle identification num- ment, two, However, page page I. Ms. on Section ber one. This is the same vehicle Lynn Hickey Dodge's employee temporary agreement Green and referenced the loan provisions by left substantial of this document and the vehicle driven Ms. Green at the blank, including addition, but not limited to the follow- time of the In accident. the sales ing: prospective agreement whether Ms. Green was a page states on one "THIS O.S.1991, Title; Passing physical delivery goods, 12A 2-401. Reser reference to the of the Security; Application despite any security vation for Limited of this reservation of a interest and though Section even a document of title is to be delivered place; particular at a time different or and in provision regard Each of this Article with to despite any security reservation of a interest seller, rights, obligations the and remedies of the by lading the bill of buyer, purchasers parties ap- the or other third (a) if the contract or the authorizes requires plies irrespective goods except of title to the goods buyer seller to the send the but does not provision where the refers to such title. Insofar destination, require him to deliver them at title provi- as situations are not covered the other passes buyer place to the at the time and concerning sions of this Article and matters title but shipment; following apply: become material the rules (b) requires delivery if the contract at desti- (1) goods pass Title to cannot under a contract nation, title on tender there. passes prior for sale to their identification to the con- (3) explicitly agreed Unless otherwise where (Section 2-501), tract and unless otherwise ex- delivery moving goods, be is to made without the plicitly agreed buyer acquires by the their identi- (a) if the seller is to deliver a document special property fication as limited this act. title, passes place title at time the when and the Any retention or reservation the seller of the documents; where he delivers such (property) goods shipped title (b) or delivered to goods if the are at the time of contract- buyer the is limited in effect to a of a reservation ing already identified and no documents are to security Subject provisions delivered, interest. to these passes place title at the time and provisions to the of the article on Secured Trans- contracting. (Article 9), goods passes (4) actions title to from the rejection buyer A or other refusal buyer any any seller to manner and on goods, justi- receive or retain fied, whether not explicitly agreed parties. conditions on justified acceptance or a revocation of re- (2) explicitly agreed Unless otherwise title goods vests title to the in the seller. Such revest- passes buyer place ing by operation to the at the time and at occurs of law and is not completes performance which the seller his with "sale". [Lynn AGREEMENT ON Hickey] THIS PURCHASE IS was the owner of the vehicle UNDERSTOOD THAT THE CUSTOMER at the time of the accident, and remands the IS RESPONSIBLE FOR THEIR BUYING proceedings. cause for further According to TAG, OWN TITLE AND TAX." It contains opinion, the court's whether warranty a limited page clause on two and presents was the owner question a fact including certain definitions of terms but not jury. While I concur pro- court's "Seller," limited to "Purchaser" and "Manu- nouncement, separately write provide (1) page facturer" in Section on two. Both my analysis own issues tendered temporary agreement loan and the sales appeal. this order contain handwritten references to a Group policy, Farmers Insurance number {9 We hold tempo- that the terms of the THE ANATOMYOF LITIGATION
rary agreement loan and the sales order are ambiguous Indeed, conflicting. when 1 2 Margaret On 17 June 1995 June Green these two together, documents are read is- Allensg'car, [Green or driver] rear-ended the regarding sues of material fact killing one injuring child and the other three of the 1986Buick at the time of the accident occupants.2 Green had day earlier that ob Therefore, arise. litigants none of the question tained the car in from Hick *5 judgment entitled to as a matter of law on ey's dealership. auto brought The Allens the issue of ownership. the 1986 Buick's four stemming lawsuits from the accident- CERTIORARI PREVIOUSLY GRANT- one of voluntarily which was dismissed and ED;COURT OF CIVIL APPEALS OPIN- the other three were consolidated below for VACATED; ION ORDER OF THE TRIAL disposition.3 Among the defendants sued COURT AND REVERSED CASE RE- were and the Allens' own unin MANDED FOR PROCEEDINGS CONSIS- carrier, sured motorist Allstate Insurance TENT WITH THIS OPINION. Company Against Lynn Hickey [Allstate]. the Allens advanced three theories of liabili HARGRAVE, C.J., WATT, V.C.J., 10 (2) ty-(1) agency, negligent entrustment HODGES, LAVENDER, KAUGER, (8) negligent September and sale. 3On BOUDREAU, JJ., concur. the district court summarily determined that { OPALA, J., concur. Lynn Hickey was the owner of the vehicle at Lynn the time of the Hickey accident. later SUMMERS, J., 1 12 dissents. challenged negligent the entrustment OPALA, J., concurring. agency summary theories its motion for today 11 The court relief. The trial Lynn vacates court ruled in favor the Court of Appeals' opinion, Civil part reverses that Hickey by order entered 31 March 2000. Some five months later a bench trial settled judgment the trial court's summarily which Lynn Hickey Dodge, declares1 that remaining Inc. Judgment issues the case. Summary process procedural Inc., Chisholm, pretrial Peggy is a de administratrix of the es- prompt disposition vice for the and efficient (deceased) of an Margaret tate of June Green and All- action sans forensic combat where there is no state Insurance filed under case num- Company, dispute about the material facts or about CJ-96-6075, 96-6076, 96-6078, bers 96-6079. facts, undisputed inferences to be drawn from (CJ-96-6075) The first case was dismissed and the law favors either the movant's claim or prejudice refiling. October 1996 without Brown, liability-defeating Manley defense. remaining three cases were consolidated 27 No- 79, ¶ 455-56. vember 1996 under CJ-96-6076. The la- Allens parties Toyota ter dismissed two of the on 12 2. Damon Allen was killed in the accident his August prejudice refiling 1999 without Allen, parents, Bobby Gene and Jane D. prejudice Allstate on 16 June 2000 with to refil- injured. Brett brother, Allen, were ing. brought against Allstate a cross-claim brought against Toyota The Allens four lawsuits other defendants. - Sales, U.S.A., Inc., Lynn Hickey Dodge, Motor COCA, the record shows as a matter law August Allens entered on 14
for the ownership passed Lynn to Green when Hickey her. delivered the vehicle to Review Brought Separate Appeals Two Were granted certiorari was on the Allens' and August Judgment From petitions.8 Allstate's brought 13 The Allens the first judgment. They sought from the Allen I Mandate Issued When No One ruling negli the adverse on their
review of sought Review Certiorari gent [Allen entrustment and theories Relying solely Lynn Hickey brought pro One week later T5 on its Allen II I]4 separate appeal nouncement, the same COCA remanded the cause from targeted The latter for review the [Allen II].5 Allen I to the district court for a determina prius ownership ruling. all nisi Because liability tion of on the tendered but unre initially tendered matters were determined prius-negligent theory. solved-at nisi sale by summary process parties prosecuted pronouncement Its Allen undisturbed left their the accelerated track.6 the trial court's on the theories of Though brought judgment, from the same agency.9 entrustment and Because appeals were never these consolidated parties sought none certiorari in Allen disposition by single courts I, mandate was issued.10 opinion, parties' sponte either sua or on the motion.7 down on the same COCA handed T6 On its certiorari review of the owner- day separate opinions, ap ILI, two one each ship dispute's record in Allen the court peal. (a) today: pronownmces that whether
Hickey was the car's owner at the time of the by Today's Disposed Allen II Stands (b) issue, presents accident a fact vacates Pronouncement On Certiorari (c) opinion, part COCA's reverses *6 judgment Lynn trial court's which decides T4 In II part Allen COCAreversed that Hickey's ownership prius judgment aas matter of law and the nisi which determined (d) Lynn Hickey to be the owner of the vehicle proceed- remands the cause for further accident, According ings at the time of the solely on the car fact issue. 7. The 6. For the accelerated-track [*] 4. Allen I is Allen v. Allen v. homa O.S.Supp.1997, Ch. August 2000. No. Lynn Hickey's appeal 1.36, Oklahoma Allen sponte, any appeals including governed solidated * * (d) 95,173. Consolidated and pertinent provisions Supreme appellate App. II is Toyota Lynn Hickey Dodge, appeals. styled styled The Allens' are: Rule 1.36 as Motor Ch. court has the discretion sua motion of a on the docket of this court as on the docket of this court as Supreme Sales, U.S.A., Inc., Rules, Companion Appeals. App. appeal one or more of Rule brought procedure, companion Court party, Inc., was O.S.Supp.1997, infra 1.27(d), No. to consider brought Rules, September see Rule note 25. or con- appeals 95,206. et Okla seq., 30 9. See judgment ship finding was in error the result was nonethe- PartIII AllenI constitutes the settled law of the case and fords the relief cannot be less Hickey negligent defense an ates it of owner of the vehicle finds it to be the owner of the vehicle but exoner- herein) date in Allen [b] there prosecute appellate correct; my in Allen I or should have either is not an infra. views on the "settled law of the case" in are no reasons entrustment of a appellant liability (entered argument review. I; an "aggrieved party" split that declared (2) appeal (4) on the theories of interposed one Lynn Hickey into that merged single judgment right from a for prosecuted multiple proceedings although vehicle; recalling to seek corrective in that 2000) into the "final" judgment (the with (3) the owner- judgment's a counter- appellant the man- standing that af- pre- that parties 8. On certiorari were directed to brief - 10. Mandate issued in Aller I 1 December 2000. following whether Allen IJ was dismissible on the (1)[a] pronouncement theories: the court's in II may mistake. Mandate be recalled either on application sponte."1 or sua THE MOTION TO RECALL MANDATE T9 Because Allen must now stand as IN ALLEN I BE CANNOT settled law of the case on the there-tendered SUSTAINED (but unreviewed) pfius ruling nisi on the pending 17 While Allen II was on certio- ageney theories of entrustment court, rari Allens-prompted before this (which will explained be further in Part III inquiry no doubt this court's mid-certiorari ) and no certiorari sought was ever in infra mandate,12 1-moved to recall the Allen I case, 1 there legal is here no tenable ground recalling which had issued 1 December 2000 when no My mandate.16 re sponse might have been sought one According certiorari. recall to their different if recall, (a) argument for wrongly COCA had been requested-before mandate's to consolidate the in issuance-by Allen I plea reasoned failed defer (b) II, mistakenty and Allen mandate's pending issued transmission two deci this court's disposition final (c) ofAllen II. litigant's pure A sions and erroncously findings relied on transparent afterthought will seldom of in Allen II pronouncement for its I. Allen ground, fer a Allens, though reasoned even According it still to the because the court's good Allen I mandate was transmitted before the makes sense for this court never to single issue more than a in multiple mandate disposition all issues advanced both appeals for judgment.17 review of one appeals, it should now be recalled so that the may issues that remain still be addressed HI single opinion. THE SETTLED OF THE LAW CASE IN 18 Mandate is a ap communication of an ALLEN I BARS REMAND ON RE- pellate tribunal to a lower court whence the LITIGATION OF LYNN HICKEY'S Ordinarily case came.13 mandate will not be LIABILITY ON THE NISI PRIUS- recalled unless it through was issued inad REJECTED THEORIES OF AGEN-
vertence
appears
or mistake or when it
AND
CY
NEGLIGENT ENTRUST-
failure to recall
it will cause unavoidable
MENT
casualty.14 A mandate
transmitted
viola
{10
tion of this court's rules will be deemed to
The settled-law-of-the-case
doctrine
through
have been issued
operates
inadvertence or
relitigation
to bar
issues that are
Peck,
11. For the contents of this court's mid-certiorari
Ins. Co. v.
139 P.
inquiry
supra
see
note 8.
An
court's "recall" of mandate is dis-
*7
tinguishable from its "withdrawal."
court
This
always
12. On 20
can
withdraw
2001 the
that which does not
Allens moved to recall
affect
judicial
mandate
another
in Allen I.
institution. Because a mandate
is directed
to a lower
tribunal,
it is
be-
placed
yond this court's withdrawal
reach once it
is
13.
Davis v. Baum,
789
entrustment),
review,
though
ownership,
tendered
entrust
undisturbed
I pro-
COCA'sAllen
theories, merged
ment
left
into the trial court's
nouncement,
judge's original ruling
the trial
later
only judgment
real and
in the case
theories)
(upon
in favor
those
of
Hick-
(that
2000).22
which was entered 14
ey must now be confirmed as settled law. A
appeals
The
in Allen I and
II
Allen were
timely-pressed
certiorari was the
timely
judgment by
brought from
only
Allens'
avenue to avoid the settled-law-
accelerated-track method.23 When a claim's
remaining liability
of-the-case bar. The sole
partial
summary disposition-which
is
-
-
theory
relitigation
that survives for
on to-
(after
unappealable24-later
develops
a
day's
Lynn Hickey's
remand is hence that of
issues)
upon
bench trial
remaining
into a
allegedly negligent sale.
judgment,
case,
it
Supreme
as
did in this
Court Rule
appeal's
1.386would not bar the
IV
prosecution
either
the record
or
PROBLEMS PLAGUING
AP-
THESE
accelerated-track method.25
PEALS WERE PRECIPITATED BY
A FLAWED
AND
LEGAL ANALYSIS
[
Lynn Hickey brought
15
separate ap
MISREADING OF APPLICABLE
(for
peal
issue)
review
RULES
1.27(a)26
1.36()27
reliance on Rules
appear
prius prejudgment
require
T14 The
These rules
rulings,
nisi
that accelerat
summary process
dispose
which utilized
appeals
ed-docket
be
prose-
commenced and
1.36(F).
Mortgage
22. See in this
connection Tinker Inv. &
petition
rized
Rule
The
in error for
41, ¶ 7,
Corp. City
City,
cross, counter,
v.
Midwest
OK
1994
co-appeal
or
shall have the
dation the should be recast as (or
appellant counterappellant cross-ap-
pellant).
SUMMERS, J., dissenting.
11 I would affirm the
District Court.
Anne PIERCE, Appellee.
Gene O. 93,764.
No.
Supreme Court Oklahoma.
Nov.
As Corrected Nov.
As Modified Nov.
Rehearing Denied Jan.
notes
and 5.
appeals
brought pursuant
have been
to Rule
appeal governed by
1.36.
may
An
this rule
judgments,"
24.
by summary
"Partial
whether
or
companion
considered
consolidation or as a
process,
appealable.
trial
are not
12 O.S.1991
appeal pursuant
appropri-
to Rule 1.27 when
681; Liberty
§
Rogalin,
Bank and Trust Co. v.
ate.
¶¶